Tonkin NO v Acting Director General of Department of Water Affairs and Sanitation and Another (WT03/10/GP) [2019] ZAWT 1 (28 May 2019)

IN THE WATER TRIBUNAL OF SOUTH AFRICA APPEAL NO. WT03/10/GP

HELD AT PRETORIA

In the Appeal of:

ANDRE TONKIN N.O. APPELLANT

AND

THE ACTING DIRECTOR GENERAL OF

DEPARTMENT OF WATER AFFAIRS

AND SANITATION

FIRST RESPONDENT

and

THE REGIONAL HEAD: GAUTENG REGION

REGULATIONS AND WATER USE: DEPARTMENT

OF WATER AND ENVIRONMENTAL AFFAIRS SECOND RESPONDENT

APPEAL DECISION

DATE HEARD:

28 March 2019

APPEARANCES:

Coram

:

Mr. F Zondagh Chairperson

:

Prof. T Murombo Member

FOR THE APPELLANT:

Advocate J Saunders

Assisted by Ms M Mothupi

instructed by Sunel Verster Attorneys

Daniel S Goosen Attorneys

FOR THE FIRST AND

SECOND RESPONDENTS:

Advocate M. Mojapelo

Assisted by Advocate T.E. Netshidzwi instructed by the State Attorney

Assisted by Mr Machala and

Ms Langa on behalf of Department of Water

PRELIMINARY MATTERS:

At the commencement of the hearing on 28th March 2019 the following preliminary matters were raised and decided.

(i) Ms M Nkomo, allocated to the Tribunal as a member in conjunction with Mr F. Zondagh and Professor T Murombo, had fallen ill prior to the commencement of the hearing and was unable to attend. Her forced absence was referred to the Deputy Chair of the Tribunal Ms L Mbanjwa who ruled that the Appeal would continue before the remaining members;

(ii) Mr F Zondagh, presiding as the Chairman of the Tribunal, disclosed previous dealings with Mr. A.F. Tonkin and various Tonkin entities in and about 1995, acting in his professional capacity as an attorney for and on behalf of the then Boland Bank Limited, offered to stand down as Chairman. Both Appellants and Respondents indicated that such a step was unnecessary;

(iii) Both the Appellant and the Respondents indicated that neither had any witnesses to call in evidence and had prepared written submissions that would be presented in argument.

INTRODUCTION

1. This is an Appeal by ANDRE TONKIN FAMILIE TRUST (IT 5760/1994) in terms of Section 148(1)(j) against a directive issued by the Respondent under Section 53(1) of the National Water Act (hereafter ‘the NWA’.)

The directive dated 27 September 2010 against which the appeal is noted, was sent to the Appellant on 28 September 2010 and was formulated in the following manner: -

1.1. It referred to a letter from the Respondent addressed to the Appellant dated 22 April 2010 in which the Appellant was required to furnish additional information pursuant to a request in terms of Section 35(3)(a) of the NWA.

1.2. It stated that the information requested in terms of Section 35(3)(a) was to be submitted on or before 30 June 2010 to enable the Respondent to establish the lawfulness and extent of the Appellant’s water uses in respect of Portion 3 of the farm Brakspruit 630 IR. This request was ignored and the information was not received.

1.3. As a result of the Appellant’s failure to comply with the request the Respondent issued the directive and instructed the Appellant to rectify this statutory contravention by submitting the required information to the Respondent on or before 30 November 2010 to enable the Respondent to determine the lawfulness and extent of the Appellant’s existing lawful water use.

1.4. Failing compliance with the directive a notice in terms of Section 54 of the NWA to suspend or withdraw its water use would be issued.

1.5. The notice further provides that this decision could be appealed in terms of Section 148(1)(j) of the NWA.

BACKGROUND

2. The Respondents at that time, were engaged in a verification process of all water uses in the Bo-Vaal Control Area. In this instance the process in respect of Portion 3 of the farm Brakspruit, 630 IR, resulted in a report dated 6 October 2009 referred to as the “Validation and Verification of Existing Lawful Water Use.” The information contained therein enabled the Respondent to communicate its findings to the Appellant and did it so in a notice in terms of section 35(1) of the NWA on 28 October 2009.

(Appeal Record pages 98 - 118)

3. This report confirmed the information available to the Respondent with which it populated the notice, emanating inter alia from the Appellant’s registered water use, field surveys and satellite images. To qualify for an Existing Lawful Water Use, the Appellant had to apply for the verification of the lawfulness and extent of its existing lawful water uses for taking and storing of water.

4. The extent of the Appellant’s existing lawful water use entitlement, was presented in the notice as having been authorised in accordance with section 9B (Proclamation 1175 of 18 September 1998) of the now repealed Water Act 1956 (Act 54 of 1956) Proclamation 1175 of 18 September 1998. To assist the Appellant with the verification process, an application explaining in detail the criteria to be met in order to qualify as an Existing Lawful Water Use, was attached. The water use authorised according to the notice, was for storage of 250 000 m3 of water and the extraction (taking) of water as being 34 741 m3 measured

during the qualifying period. Once properly completed and returned, the information would enable the Respondent to conclude the Section 35 process and determine the lawfulness and extent of the Appellant’s existing lawful water uses.

5. The notice advised the Appellant that it was not limited to provide only the information requested, but could provide further motivation as required or advised. A reply was required to be submitted on or before the closing date, being 15 January 2010. Failure to do so may invoke the provisions of section 35(5) that provides as follows: -

“No persons who has been required to apply for verification under subsection (1) in respect of any existing lawful water use may

exercise that water use: -

(a) After the closing date specified in the notice, if that person has not applied for verification; and

(b) after the verification application has been refused, if that person applied for verification.

6. The Section 35 verification process was further explained by drawing attention to the authority of the Respondent (Responsible Authority), to request further information in addition to that contained in the application and if required, to conduct its own investigations in terms of section 35(3) of the NWA. The notice confirmed that the Appellant was to be afforded an opportunity to make representations on any aspect of the application prior to the Responsible Authority making a determination (decision) in terms of section 35(4) as follows:-

“A Responsible Authority may determine the extent and lawfulness of a water use pursuant to an application under this section and such determination limits the extent of any existing lawful water use contemplated in Section 32(1).”

The Appellant’s right to Appeal, “against a decision of a Responsible Authority on the verification of a water use under

section 35 by the person affected. by it” is authorised by virtue of the provisions of section 148(1)(e)

7. On 12 November 2009, in a letter addressed to the Appellant’s, the Respondent again informed the Appellant of the extent of its entitlement according to their records: -

“Die eiendom val binne die artikel 9 B beheergebied van die vorige Water Wet. Voorlopige ondersoeke toon dat geen gebruike uitgeoefen was in die gekwalifiserende tyd op hierdie eiendomme nie. Daarom is hier geen aanspraak op volumes as ‘n gesamentlike eenhied ter sprake nie.”

Counsel mentioned during argument that according to his instructing attorney this letter was not received by her office.

8. On 26 March 2010 the Responsible Authority in a faxed message to Mr Tonkin, advised that it required a response in respect of a particular paragraph of the notice and the comment made in paragraph 7 thereof that relate to the transfer of water from Portion 3 of the farm Brakspruit to some other property situate on the banks of the Vaal river, to be explained. Shortly thereafter the Appellant’s attorney reminded the Respondent that it was still awaiting a reply to a letter of 14 September 2007, wherein particulars of the validations, required in respect of various properties in addition to Portion 3 of the farm Brakspruit 630, IR W was previously requested.

Whether this letter was drafted in response to the Respondent’s request of 26 March 2010 is not known.

(Record page 69)

9. The Respondent issued a formal notice in terms of Section 35(3)(a) on 22 April 2010 sent to both the Appellant and its attorney. This notice required the Appellant to provide further information in addition to that which had been received and in particular expected a response to the following question: -

“U dui aan op die aansoekvorm dat die water oorgeplaas is na eiendomme langs the Vaalrivier. Neem asseblief kennis dat hierdie eiendom nie oor ‘n bestaande wettige onttrekking van water beskik nie omdat hier geen onttrekking van water plaasgevind het gedurende die kwalifiserende tydperk nie. U sou ook nie om ‘n aansoek om oorplasing van hierdie eiendom na ‘n eiendom langs die Vaalrivier kon aansoek doen nie omdat Brakspruit 630 IR nie aan die Vaalrivier oewer is nie.”

This notice confirmed the Respondents knowledge of the Appellant’s water use entitlement previously communicated to it as a recommendation in the section 35(1) notice, also confirmed in the letter of 12 November 2009 and once again in the section 35(3)(a)

notice of 20 April 2010.

10. In support of this request, the notice included a list featuring examples of documents and related evidential material that could be used by the Appellant to substantiate its reply. It again invited the Appellant to make representations on any or part of the application that it wished to make, provided it did so on or before 30 June 2010 or such later date as may be agreed and subject to the Appellant’s written request for a postponement to do so.

11. On 5 May 2010 the Appellant in answer to the section 35(3)(a) notice, referred the Responsible Authority to its attorney Sunel Verster advising that all the required information could be obtained from her. A letter from the Respondent in this regard, addressed to her on 10 May 2010 with a request to reply on or before 30 June 2010, remained unanswered.

(Record page 70)

12. As a consequence of the failure to respond to this notice, the impugned directive was issued in accordance with section 53(1) of the NWA, demanded compliance with the section 35(3)(a) notice and threatened that in the event of non-compliance, the provision of section 54 of the NWA would be invoked: -

54(1) Subject to subsections (3) and (4), a responsible authority may by notice to any person entitled to use water under this Act suspend or withdraw the entitlement if the person fails –

(a) To comply with any condition of the entitlement;

(b) To comply with this Act; or

(c) To pay a charge which is payable in terms of Chapter 5.

(2) An entitlement may be suspended under subsection (1) –

(a) For the period specified in the notice of suspension; or

(b) Until the responsible authority is satisfied that the person concerned has rectified the failure which led to the suspension.

(3) A responsible authority may only suspend or withdraw an entitlement under subsection (1) if the responsible authority has directed the person concerned to take specified steps to rectify the failure within a specified period, and the person concerned has failed to do so to the satisfaction of the responsible authority.

(4) The person concerned must be given an opportunity to make representations, within a reasonable period, on any proposed suspension or withdrawal of an entitlement to use water.

(5) A responsible authority may, for good reason, reinstate an entitlement withdrawn under subsection (1).

13. Following receipt of this directive the Appellant noted an Appeal in terms of section 148(1)(j) of the NWA relying on the following grounds: -

13.1. That the First and/or Second Respondent did not comply with the provisions of Section 3 of the Promotion of Administration Justice Act 2000 (Act 3 of 2000) “PAJA” in that it did not take into account the provisions of Section 3(2)(b) (a) to (e) thereof and in the alternative should it be found that the purported directive complied with the requirement of a notice contemplated in Section 3(2) of PAJA, then and in that event, no directive in terms of the provisions of Section 53 of the NWA, was issued.

13.2. That the purported directive referred to above was void for vagueness in

that: -

13.2.1 The designation of the person referred to in the notice is not stated in the notice neither is the signatory to the notice that of the official mentioned therein;

13.2.2 The purported directive is silent in respect of the capacity of the signatory to do so;

13.2.3 The authority to issue a directive in terms of Section 53(1) is delegated to an official with the rank of Chief Engineer;

13.2.4 It is not evident from its purported directive that the person referred to therein is in fact a person with the rank of Chief Engineer and that the purported directive is indeed signed by a person to whom the authority to issue a directive had been delegated;

13.2.5 The directive is silent thereafter and the actual signatory thereof identified by the initial “FRCM” had the authority to issue directives and was indeed authorised to do so in terms of the delegation.

(Record Page 1 - 5).

STATUTORY PROVISIONS

14. The concept of an “existing lawful water use” was included in the NWA to identify and accommodate as a transitional arrangement, all the lawful water use entitlements and water uses legally exercised and authorised in terms of the now repealed Water Act 1956 (Act 54 of 1956) and its amendments or that was authorised in terms of any other Law to do so, prior to the enactment of the NWA in 1998. It was defined in the NWA as follows: -

Section 32

(1) An existing lawful water use means a water use –

(a) Which has taken place at any time during a period of two years immediately before the date of commencement of this Act, or

(b) Which has been declared an existing lawful water use under section 33, and which-

(i) was authorised by or under any law which was in force immediately before the date of commencement of this Act;

(ii) is identified as a stream flow reduction activity in section 36(I); or

(iii) is identified as a controlled activity in section 37(1)

(2) In the case of-

(a) a stream flow reduction activity declared under section 36(1); or

(b) a controlled activity declared under section 37.

Existing lawful water use means a water use which has taken place at any time during a period of two years immediately before the date of the declaration.

15. While section 34 of the Act authorised the continuation of an existing lawful water use subject to such conditions as a Responsible Authority may determine. Section 22 of the NWA only permits a person to use water without a licence under certain limited circumstances, one of which is the continuation of an existing lawful water use.

16. Verifying the lawfulness and extent of water use is a comprehensive statutory process detailed in section 35 of the NWA as follows: -

35. (1) The responsible authority may, in order to verify the lawfulness or extent of an existing water use, by written notice require any person claiming an entitlement to that water use to apply for a verification of that use.

(2) A notice under subsection (1) must –

(a) have a suitable application form annexed to it;

(b) specify a date before which the application must be submitted;

(c) inform the person concerned that any entitlement to continue with the water use may lapse if an application is not made on or before the specified date; and

(d) be delivered personally or sent by registered mail to the person concerned.

(3) A responsible authority –

(a) may require the applicant, at the applicant’s expense, to obtain and provide it with other information, in addition to the information contained in the application;

(b) may conduct its own investigation into the veracity and lawfulness of the water use in question;

(c) may invite written comments from any person who has an interest in the matter; and

(d) must afford the applicant an opportunity to make representations on any aspect of the application.

(4) A responsible authority may determine the extent and lawfulness of a water use pursuant to an application under this section, and such determination limits the extent of any existing lawful water use contemplated in section 32(1).

(5) No person who has been required to apply for verification under subsection (1) in respect of an existing lawful water use may exercise that water use –

(a) after the closing date specified in the notice, if that person has not applied for verification; or

(6) A responsible authority may, for good reason, condone a late application and charge a reasonable additional fee for processing the late application.

17. Reference in the Appellant’s Notice of Appeal alleging non-compliance with the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) relates to the following: -

3.(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of

each case;

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) –

(a) adequate notice of the nature and purpose of the proposed administrative action;

(b) a reasonable opportunity to make representations;

(c) a clear statement of the administrative action;

(d) adequate notice of any right of review or internal appeal, where

applicable; and

(e) adequate notice of the right to request reasons in terms of section

18. The administrative action referred to in section 3 of PAJA is defined in the Act as follows: -

1. In this Act, unless the context indicates otherwise –

(i) “Administrative action” means any decision taken, or any failure to take a decision by –

(a) An organ of state, when –

(i) Exercising a power in terms of the Constitution or a provincial constitution; or

(ii) Exercising a public power or performing a public function in terms of any legislation; or

(b) ……………. and

19. A decision as: -

(v) “decision” means any decision of an administrative nature made, proposed to be made, or required to be made as the case may be, under an empowering provision, including a decision relating to –

(a) Making, suspending, revoking or refusing to make an order, award or determination;

(b) Giving, suspending revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) Issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) Imposing a condition or restriction;

(e) Making a declaration, demand or requirement;

(f) Retaining, or refusing to deliver up, an article; or

(g) Doing or refusing to do any other act or thing of an administrative nature, and a reference to failure to take a decision must be constructed accordingly;

(vi) ……...

(vii) ……..

viii) ……..

SUBMISSIONS

20. Counsel for the Appellant as well as the Respondents, prepared written submission that were presented in oral argument during the hearing.

21. A chronological record of events subsequent to the noting of the Appeal in 2010 was presented by the Appellant’s Counsel, and appeared to be a thinly disguised attempt to accommodate a new ground of Appeal not previously raised. It sought to provide a lawful ground on which the Tribunal could be persuaded to set aside the Section 53(1) notice. The Appellant opined that the failure by the Responsible Authority to provide a record and reasons for its decision, stretching over a period of some eight years is “totally unacceptable” and the delay in itself, would constitute a reason to set aside the Section 53(1) notice. In support of this argument the Tribunal was referred to MEC OF Health Eastern Cape versus Kirkland Investments 2014 (3) SA 481(CC) in which the learned judges stated that: -

“The Respondents are public functionaries and are bound by statutory and common law time limits. They may not circumvent these

procedural tricks.”

22. It is common cause that the Tribunal was dysfunctional for an extended period of time and this together with other contributing factors such as the inexplicable failure of the Respondent to furnish timeously the record and reasons for the decision upon request as it was obliged to do, ensured the long delay that has occurred.

23. Having been reminded by a member of the Tribunal that failure to give reasons is in itself a specific ground of Appeal in terms of PAJA, this contention was laid to rest when Counsel conceded that raising the delay was merely offered in legal argument as at the time of noting the Appeal, the delay in furnishing the reasons was not envisaged. Having regard to the subsequent lack of communication between the parties, it appears that neither were over anxious to complete the process as it can safely be

assumed that the Appellant’s water use entitlements or assumed entitlement, would have continued unfettered during that period while the Respondent was committed to other activities that precluded it from a proper Departmental response.

24. The essence of Counsel’s submissions was: -

24.1. The directive based on the section 35(3)(a) notice of 22 April 2010 to which the Appellant failed to respond, is in fact an administrative action taken in contravention of the provisions of section 3(2)(b) (a) to (e) of the Promotion of Administrative Justice Act (Act 2 of 2000) and therefore should be reviewed and set aside.

(Transcription Page 37 line 19 – 25)

24.2. An administrative action exercised by a public power in terms of legislation must be procedurally fair as required in section 3(1) of PAJA and in order to give effect to the right to administrative action that is procedurally fair comply with the requirements of section 3(2)(b) of PAJA.

24.3. The directive he argues, is non-compliant as it, and the notice of 22 April 2010 requesting information in terms of section 35(3)(a) to which it refers, is totally devoid of any of the requirements in compliance with the relevant Section of PAJA.

24.4. The mere fact that the Respondent engaged in a process of verifying the Appellant’s water uses and issued notices in terms of section 35(1) and section 35(3)(a) as is required, that may have contained some elements of the requirements provided under section 3(2)(b)(a) to (e), cannot be considered as validating the directive as being compliant with the requirements of the relevant Section as a whole.

24.5. The process of verifying the Appellant’s Existing Lawful Water Use was suspended by the Section 53(1) notice and it remained incomplete in that the Respondent failed to make a determination provided in Section 35(4) of the NWA as he was entitled to do.

24.6. The administrative action in issuing the directive is separate and distinct from the Section 35 process must be procedurally fair, and comply with the prescripts of Section 3(2)(b)(a) to (e).

0cm; line-height: 200%">24.7. Although conceding that there has been no attempt by the Respondent to invoke the provisions under Section 54 threatened in the directive, an Appeal is justified in view of the principles decided in the matter of Oudekraal Estates (Pty) Limited v City Council of Cape Town & others 2004 (6) SA 223(SCA) where the Court considered -

“Whether or in what circumstances an unlawful administrative act might simply be ignored, and on what basis the law might give recognition to such act.”

The Court accepted that our law has always recognised that even an unlawful administrative act is capable of producing legally valid

consequences for as long as the unlawful act is not set aside. Based on this principle and supported by the conclusion of the learned author Christopher Forsythe quoted with approval by Howie J A in the aforementioned authority that

“…… an invalid administrative act may, notwithstanding its non-existence (in law), serve as a basis for another perfectly valid decision.

Its factual existence, rather than its invalidity, is the cause of the subsequent act, but the act is valid since the legal existence of the first is not a pre-condition for the second.”

The prejudice that may be suffered by the Appellant is evident in the possibility that the Respondent may suspend or revoke its water use. (Transcript Page 48 line 15 – 19)

24.8. Challenged on the proposition that the Section 53(1) directive is linked to a multi-stage section 35 process triggered by prior administrative action that cannot be separated into a separate administrative action, he confirmed the

Appellant’s contention that it could. Referred to the decision in the matter of P.G. Group (Pty) Limited v The National Energy Regulator of South Africa 2018 (5) SA 150 (SCA), he maintained that the directive was issued prior to the completion of the process.

(Transcript Page 44 – 45).

24.9. The administrative action in this matter is

“This issuing of the directive that is the administrative action”.

(Transcript Page 37 line 21 – 22).

On enquiry by the Tribunal whether this submission by Counsel can in any way be reconciled with that of Section 161(3) of the NWA that provides as follows:-

161(3) “A failure in good faith to consult with or to send notice to any relevant person or body as required by this act does not invalidate any act or process for which such consultation or notice is a prerequisite.”

Counsel submitted that this provision is irrelevant given that PAJA was specifically enacted to give effect to the right to procedurally fair administrative action and Section 161(3) could not interfere with that right.

(Transcript page 38 line 15 – 19)

25. The Respondent introduced its written submission with the following statements:-

“The Appellant’s property Brakspruit 630 IR was subjected to a verification of existing water use in terms of Section 35 of the National Water Act 36 of 1998 (The NWA) and at the conclusion of that process a directive was issued to the effect that the Appellant should stop the water use.”

“The Appellant does not challenge the findings of the Responsible Authority in relation to his existing lawful water use. The

Appellant only challenges the procedure.”

“It will therefore be submitted that the findings about the existence of an existing lawful water use by the Responsible Authority is not contested or in dispute. What is in dispute is only the procedure.”

The above statements and the belief that the Appeal is brought in terms of section 148(1)(e) of the NWA is simply not supported by the facts.

26. As I understand the Respondent’s submissions, it supports in essence the proposition that the section 3 of PAJA is a “whole process” and to establish whether the directive is procedurally fair, consideration must be given to the contents of all those notices required in terms of the section 35 process. On a proper interpretation of these notices inclusive of the directive, the Respondent submits compliance in terms of section 3(2)(a) to (e) of PAJA that confirms the procedurally fairness of the administrative action taken by the Respondent and is thereof in compliance with section 3 of PAJA. In addition, the Respondent’s submissions for the most, related to the events that occurred prior to the section 53(1) directive that for purposes of this Appeal does not have real relevance.

ANALYSIS AND FINDING

27. Before considering any submissions by the parties that the directive is invalid based on it being void for vagueness, I have decided firstly to analyse the arguments and decide the alleged invalidity relating to non-compliance with the provisions of PAJA and thereafter, if necessary, address the further appeal. In doing so I have considered the following: -

27.1. It is common cause that this appeal was occasioned by the failure of the Appellant to respond to a legitimate request by the Respondent to furnish information, in its own interest, to enable the Respondent to make a determination of its Existing Lawful Water Use. Such a determination would entitle the Appellant to continue with the existing lawful water use authorised thereunder. The reason for the Appellant’s failure does not affect the reasons for the Appeal except to the extent that it was the cause for issuing the section 53(1) directive. Whatever the reason, it is irrelevant for purpose of the Appeal.

27.2. This Appeal follows the commencement of a process embarked upon by the Respondent in terms of section 35 of the NWA to verify the lawfulness and extent of the Appellant’s water uses. This process provides administrative action that will eventually culminate in a decision by the Responsible Authority in terms of section 35(4) of the NWA in which the extent and lawfulness of the Appellant’s water use pursuant to an application under this section is determined. The determination may or may not limit the extent of any existing lawful water use contemplated in section 32(1) of the NWA.

27.3. The outcome envisaged in section 35(4) of the NWA is subject to the provision of section 35(5) of the NWA that prevents the exercise of that water use if after the closing date specified in section 35(1) notice, no application for a water use was applied for, or the verification application was refused, after having applied for verification. Although considered to be incomplete it is common cause that such an application was presented, and the Appellant could lawfully continue with its water use.

27.4. Once determined, specific provision is made in section 148(1)(e) for an Appeal against a decision of a Responsible Authority (Respondent) on the verification of a water use under section 35 by any person affected thereby. This decision however is suspended thus allowing the person affected by the decision to continue its water use until the final disposal of the appeal.

“Section 148(2) An appeal under subsection (1) –

(a) Does not suspend a directive given under section 19(3). 20(4)(d) or 53(1); and

(b) Suspends any other relevant decision, direction, requirement, limitation prohibition or allocation pending the disposal of the appeal, unless the Minister directs otherwise.

27.5. In the matter at hand this process was interrupted by a directive issued under section 53(1) against the Appellant for failing to respond to a request for information in terms of a section 35(3)(a) notice prior to a determination envisaged in section 35(4). This resulted in a totally different appeal process prescribed in section 148(1)(j) against the directive issued under section 53(1) and is dealt with in terms of section 148(2)(a) quoted above that does not suspend the operation of the directive. The outcome envisaged by this appeal process is clearly at variance with the legitimate expectations of the Appellant with that envisaged in terms of section 148(1)(e).

27.6. Any failure to respond to the section 53(1) directive based on the Appellant’s request for information, will trigger section 54 that provides as follows: -

54. (1) Subject to subsections (3) and (4), a responsible authority may by notice to any person entitled to use water under this Act suspend or withdraw the entitlement if the person fails –

(a) to comply with any condition of the entitlement;

(b) to comply with this Act; or

(c) to pay a charge which is payable in terms of Chapter 5.

(2) An entitlement may be suspended under subsection (1) –

(a) for the period specified in the notice of suspension; or

(b) until the responsible authority is satisfied that the person concerned has rectified the failure which led to the suspension.

27.7. The suspension or withdrawal of an entitlement envisaged in Section 54, in respect of a person entitled to use water, presupposes an entitlement. This entitlement is in effect exactly what the section 35 process had to determine. The process was however interrupted, and it follows that the Appellant’s entitlement to an existing lawful water use is subject to a

determination by the Respondent made in terms of section 35(4) of the NWA. Without it no entitlement that is capable of being

suspended or revoked, exists.

27.8. In deviating from the prescribed and ongoing section 35 process, the Respondent erred in issuing a section 53(1) directive. It should have, in view of the recommendations in the Validation Report, and the Appellant’s failure to provide the required information, exercised its authority to make a determination in respect of the Appellant’s existing lawful water use. That in my view would have been the rational decision to make.

28. The continuation and completion of the section 35 procedure by the introduction of the directive, interrupted the administrative action necessary to produce a determination compliant with the provisions of section 3(1) of PAJA. The validity of the directive cannot be achieved by relying on any of the administrative actions apparent in the section 35 procedure.

The Appellant correctly argued that the directive in itself represents the administrative action and it must therefore comply with the provisions of PAJA.

29. Having found the directive to be invalid, the further ground of appeal based on it being void for vagueness has not been considered as it is purely of academic value only.

30. The finding of invalidity has not affected the substantive determination of the Section 35 process. In the absence of a determination, the Respondent can lawfully continue with the section 35 process which was not concluded.

31. In view of the effluxion of time and the expiry of the closing date reflected in the Section 35(3)(a) notice, an amendment thereof is be required. Such an amendment is made in the order that follows hereunder: -

ORDER

In view of the above findings and in consideration of the submissions made by the parties we find as follows: -

1. The appeal noted in terms of paragraph 1.1 of the Appellant’s Notice of Appeal dated 25 October 2010 is upheld;

2. The directive issued by the Respondent in terms of section 53(1) of the NWA dated 29 September 2010 is hereby reviewed and set aside;

3. The Appellant is ordered, subject to the right afforded in section 35(3)(d) of the NWA, to furnish the information required in the current section 35(3)(a) notice within sixty (60) days from the date of this order or such extended date as the Respondent may allow.

SIGNED AT PRETORIA ON THE 28th DAY OF MAY 2019.

___________________________________

Mr F. Zondagh

Additional member (Panel Chair)

_____________________________________

Prof. T. Murombo

Additional member

I agree, and it is so ordered.